Court asks Appleby College to reconsider denial of diploma to student

A lot of hard school work literally went up in smoke and out the window for student Gautam Setia at prestigious Appleby College in Oakville on the last night of his final year.

The 101-year-old private college, whose motto is “reflecting the past, shaping the future,” expelled Setia for allegedly lighting up a bong with marijuana and then smoking it in a pal’s dormitory room as they celebrated the end of high school.

Since it was the end of his school days there, it would seem the school’s move would have little consequence. But there was more.

Appleby wouldn’t confer its valuable diploma. The school banned him from graduation ceremonies. Setia’s name didn’t appear on the graduate list in the school’s magazine. His family cancelled a bash for the graduating class.

The moves stunned Setia and his parents, immigrants from India of modest means who sacrificed financially to send their only son to private school. His parents believed the penalties were unfair and harsh. They never got a hearing from school officials.

Appleby countered that its decisions were “not incorrect and unreasonable” and in line with its code of conduct and other policies.

After the initial shock and disappointment of the school’s handling of the incident, the Setia family pushed back and sought a judicial review to get his diploma and cancel the expulsion.

More than two years later, a divisional court has given the family, who declined comment, some vindication. In a majority decision last week, the court didn’t order Appleby to give Setia the diploma but said the school should look at the issue again in view of their findings. The court also quashed the expulsion.

“We decline to go further and order Appleby to confer the Appleby diploma,” said Justices David Aston and Joan Lax. “It is not appropriate to do so without first affording the new head of school an opportunity to reconsider the matter and exercise his discretionary statutory power…”

Evidence in the case showed an Appleby residence director entered the room of Setia’s friend and smelled marijuana during a regular curfew check on the night of June 14, 2010. The director saw an open window, a fan running at full speed, a bong for marijuana on a desk, smoke still in it and the two students with their eyes “glassed over.”

Appleby’s head at the time expelled Setia for lighting a bong and smoking marijuana in a school building. The first offence was punishable by mandatory expulsion because Appleby considers it a serious safety hazard under the school’s code of conduct.

However, the judges found there was nothing to show Setia lit the bong, which would mean automatic expulsion. That lack of evidence would have given Appleby head Dr. Michael Peirce more options because the school’s policy against the other offence of smoking included discipline options such as suspensions, the judges noted.

“Once a lesser penalty is a possibility, Dr. Peirce had an obligation to consider what penalty to impose within the range of options,” they said. “For example, he might have decided that simply barring Gautum from attending the graduation ceremonies was adequate in the circumstances of the case, once he took account other facts.”

In a dissenting opinion, Justice Sandra Chapnik said Appleby issued the correct penalty and acted fairly despite not holding a hearing. The student committed a “zero tolerance” offence and knew the rules. The incident didn’t prevent him from completing a final exam or obtaining his provincial diploma, she added.

An Appleby spokesperson said the school is still reviewing the court decision.

“We are continuing to work with the family,” added Tracey Pearce-Dawson, director of corporate communications.

Lawyer Ron Manes, representing the Setia family, said he initially didn’t want to comment while Appleby dealt with the court decision, but that changed after the school’s statement.

“The school is not, nor has it ever worked with the Setia family,” Manes said. “They (school officials) have stubbornly opposed issuing Gautum his diploma from the time they expelled him in June 2010, right through the proceedings until now, during which the Setia family incurred great legal costs and considerable anguish as a result.”

Setia, then 18, and his friend wrote a final law exam the morning after the incident, and then school officials interviewed them. They admitted smoking marijuana and knew the repercussions. Within a few hours, officials informed the students of their expulsion and advised them “to console their parents.”

School officials would not reveal whether Setia’s friend also lost his diploma or faced other penalties.

Setia’s mother, Navpreet, said in an affidavit she received a call the same morning from a school official who told her the students had been caught “bonging together” and “smoking dope,” and would probably be expelled, The official denied the initial description.

“I was absolutely shocked,” she said. “I find it difficult to express how devastated it felt to hear that after many years at the school, Appleby was about to expel Gautam on his final day.”

She said the parents begged for a meeting with Peirce, but the school disregarded its own protocol.

Their easygoing son had posted good grades; participated in varsity sports, camping trips and a model United Nations; and helped build a school for underprivileged children in India. He had an unblemished discipline record until the last day.

His mother said Peirce’s emails suggested that if they withdrew their son, the college would grant him his Ontario secondary school diploma but not the higher-standard Appleby diploma. The college diploma would have boosted his chances for acceptance at top-notch universities, a key point for the Setia family.

She said the parents had spent $210,000 in tuition and other education expenses at Appleby over six years in the Grade 7-12 boarding school. Furthermore, she said, they donated $2,500 annually to help the school’s development.

Fearing their son would also lose his provincial diploma and not be able to attend university in the fall, the parents accepted Peirce’s proposal. However, both sides and the court agreed Setia’s departure was as an expulsion.

Setia, who declined comment along with his parents, said in an affidavit he was wrong to smoke marijuana at the college and cause deep hurt to his parents. But the student noted he was also “devastated and humiliated” by the school’s response.

“I believe that if the school’s administration had followed the proper procedure and had heard my side of the story, or at least listened to what my parents and I had to say about an appropriate sanction for my behavior, I would be an Appleby graduate today,” he said.

Setia also pointed out that he had been treated differently than other students facing similar allegations. The school countered there was no proof those students had smoked there.

In its defence, Appleby said Setia admitted smoking and there was no need for a hearing to challenge the evidence.

“The basic requirements of natural justice are that of notice (the school’s code of conduct); opportunity to make representations, and an unbiased tribunal,” added Appleby, which was unsuccessful in requesting the family pay its legal costs. “These requirements were satisfied in this case.”

Appleby also said that although a provincial statute led to the school’s formation, its decision should not be subject to judicial review because the college is a private institution. The court rejected the argument.

Wilfrid Laurier University accepted Setia for its business program later in the year but a source close to the family said he dropped out, primarily because of the lingering emotional pain and humiliation of the expulsion.

Months afterward, the parents said, they did receive correspondence from Appleby. The school enquired whether they would like to make a donation to the school’s alumni fund, even though their son was not a part of that group.